|Mark F. Vetter, Davis & Kuelthau sc; Dean R. Dietrich, Ruder Ware; Laura Skilton Verhoff, Stafford Rosenbaum LLP; Michael J. Klinker, Whyte Hirschboeck Dudek SC; Nathaniel Cade Jr., Michael Best & Friedrich LLP; Milwaukee County District Attorney E. Michael McCann.|
More and more lawyers are changing firms multiple times during their careers. Whether they are smooth or acrimonious, those transitions create challenges for the lawyer making the move, the old law firm, the new firm and clients who may be caught in the middle. Wisconsin Law Journal editor Tony Anderson met with a panel of law firm leaders and ethics specialists to discuss some of the things lawyers and law firms need to keep in mind when a lawyer moves. What follows is part one of their roundtable discussion.
WISCONSIN LAW JOURNAL: We’ve talked about communication in a number of different areas. One of the things we haven’t touched on yet is communication with the court about who the attorney of record is on a case when a lawyer leaves. How does that happen? Who’s responsible?
NATHANIEL CADE JR.: Once you know where the files are going to be, sometimes it’s easy. If the lawyer is departing and going somewhere and it’s not a competing firm, you don’t worry so much about communication. You let the client know. You let them know they have a choice. Often they’ll say, "No, I want to stay."
Usually there’s been someone else they’ve been working with at the firm.
A lot depends on the court clerks. Not every case lists every lawyer. What I often do on the cases that I picked up because someone has left is I go right to CCAP (the Consolidated Court Automation Program) and I see who is listed as far as the court is concerned, and then I just may write a letter stating, "So and so has departed. I am now the attorney of record, or the attorney to receive the correspondence." Then I just copy the other lawyers. It’s a pretty simple solution.
I don’t think the court is as big of a deal as communicating to opposing counsel just letting them know. Because, there could have been an agreement, or some type of professional courtesy that was extended that may not be in the file. I often say when someone wants an extension, send me a letter, send me an e-mail. If they haven’t quite done that yet, or if they’re in the process of doing it, and the person has left, and you turn off the computer account, it may not bounce back to the person you know they’ve left. Now they file their answer late, as far as the law firm is concerned. And you file a motion. So, certainly, communicating with opposing counsel is important.
DEAN R. DIETRICH: That raises an interesting question, Nate. Do you turn off the computer right away? Don’t you really have to kind of monitor that e-mail, and monitor the mail? What do you do in situations like that?
CADE: I only say that because tech people aren’t lawyers. It’s part of this vision of thinking ahead of time, letting them know that stays on and somehow forwarding those e-mails. Once they find out someone’s leaving, or has left, they might turn that computer off, or turn off that account without understand the nuances of the law.
LAURA SKILTON VERHOFF: We usually have someone monitoring anything that comes into question. It may not be a lawyer who’s monitoring everything, but if a question arises, a lawyer can respond to it.
WLJ: When a lawyer starts the process, and says, "I’m going to be departing," what specific things do you do to make sure that e-mails or other elements aren’t going to fall through the cracks?
MARK F. VETTER: I wouldn’t say it’s a formal plan, because you deal with every situation differently. But there are certain basic principles, which are applicable in every case. We have separate teams. So if the departing attorney is on the business team, our team head is the one who’s responsible for working on that.
Sometimes I get involved as the president of the firm. But generally it’s done with our team heads.
We’ve got a basic checklist. We get IT involved. We get the other attorneys, who are working with that person, involved. We’ve got a pretty good checklist of things that we would follow up on.
Dean R. Dietrich
Dean R. Dietrich practices Labor/Employment, Municipal and School Law at Ruder Ware in Wausau. Dietrich is treasurer of the State Bar of Wisconsin. He chaired the State Bar’s Committee on Professional Ethics from 2000-02 and is a member of the Professionalism Committee.
MICHAEL J. KLINKER: We work from a checklist, also. The person who’s departing is supposed to walk around and get a signoff from, everyone from the HR person who says that we told them about their benefits as they leave, to IT is on that checklist in terms of what’s going to happen here with communications, and so on. You have to be flexible.
DIETRICH: Any concerns about your access to the departing lawyer if you need to follow up on a matter?
KLINKER: As a practical matter, it’s never been a real problem. We’ll say to people as they hand in their memo that’s been initialed by everyone, "We presume, we might give you a call, we have your phone number." As a practical matter, people are very cooperative.
VERHOFF: That’s why I was talking before about making sure you’re communicating with the other lawyers in your firm before you start communicating with clients.
It’s helpful because if you are burning bridges before you g
o, it’s going to be harder to follow up after the fact. And it may be in the client’s best interests to do so.
CADE: It’s in the departing lawyer’s best interests, because there will come a time when you may need something from the firm that you’ve left. Whether it’s a reference or something else. Whether you’re in Milwaukee, Madison, or Waukesha. It’s not that big.
Why would you turn around and provide your old firm with a reason to have a grudge? When someone calls, they’re not going to give you the glowing reference.
Lukewarm, "Yeah, he worked here. Good-bye." But if there’s a grudge when someone calls, and asks what’s Nate Cade like. "Well, he’s a jerk. Let me tell you why he’s a jerk." And tick off the reasons which they probably wouldn’t say to begin with. So act like an adult, leave like an adult, and be treated like an adult. I think if you follow those golden rules, you’ll be fine in your career.
DIETRICH: There probably is an obligation if the law firm that you departed from asks you for information; you are more likely to be the only one knowing it, and you probably have an ongoing obligation to give the client that information. What also becomes interesting, and I’ve had it happen, is where the departing lawyer calls and asks "Can I get a copy of what I did while I worked for the firm, because I have a similar case now, and I’d like to have the work product that I did."
That gets a little bit difficult too. Certainly if it’s a brief submitted in a court proceeding or something that’s an open document, that’s not a problem. But early in my career, when I departed one firm, I had forms that I had worked on while I was there. And I just kept them in the file. It seems to me that’s my work product, although, technically, it belongs to the firm. It was generated under the auspices of the firm. That is not a resolved area.
WLJ: That raises an interesting question. What can lawyers reasonably take with them when they depart the firm? What is theirs as opposed to what belongs to the firm?
Laura Skilton Verhoff
Laura Skilton Verhoff is a partner at Stafford Rosenbaum LLP in Madison. Her practice focuses on litigation, including litigation involving vehicle manufacturers and dealers, collection, subrogation and insurance litigation. She also handles a broad range of estate planning and probate matters.
DIETRICH: I think that the measure would be personal notes and personal correspondence. I don’t think that you properly could take stuff beyond that. There likely would be forms that had blanks as far as client names that you probably should receive permission for taking. In many cases, you would be given permission to take it if it’s a form you’ve generated. But it really would be limited to your personal correspondence and, perhaps, personal notes of research that you did. But even personal notes and research is questionable.
VETTER: I would agree with the personal notes. I don’t think anyone’s going to question that. In the real world, those forms are gone all the time. There’s no question about that.
DIETRICH: Push a button on the computer.
VETTER: That’s right. If somebody knows they’re leaving, they’re going to have that gone long before that they announce that they’re departing. But the area that I think is really dicey is with respect to work product. Research memos which are work product for a client who you’re not taking with you. That is proprietary to the client. And no one else would have a right to that. So I think if somebody took that work product, that would be treading on extremely dangerous ground.
CADE: I mentioned earlier the associate who was caught in that conflict tug of war. Right before he came over, he called me in and asked, "What can I take?" I said view this with suspicion. You’ve already announced once you’re leaving. So everything you do, every key stroke you touch can be recorded. So you don’t want to just start hitting save save save or print print print, because they will know that.
Like they do in Vegas, you should just clap your hands, dealer out, walk away (from the game table). Then go through your files with somebody. Let them say what you can take and not take. The last thing you want is to get caught. It’s one thing if you’re a shareholder, and you’re bringing in significant client base. Your new firm will fight for you. If you’re just an associate with no client base, you will hang in the wind. You have to be very, very careful, because in this day and age, you are expendable. That job is not a guarantee if you violated the law, or if you’ve improperly taken any type of trade documents, trade secrets, things of that nature, that duty of loyalty will turn around and bite you every time.
WLJ: What about client information?
DIETRICH: That, again, becomes a touchy area, because if you have a duty to communicate with those clients that you worked with, logic would say you at least have to maintain a list of those clients and the contact information. You have an ongoing obligation up to the point that you walk out the door to be their attorney.
However, once you take that list out the door with you, then arguably you’re violating your duty of loyalty to your old firm. You can see a little conflict there between what your duty may be to the client versus your duty to the law firm that you’re departing.
The easy answer is the files go where the client directs them to go. You have to be very careful what you charge for photocopying that file, because the file belongs to the client. That brings up an interesting question. Can you keep a copy of it if the file departs to the new law firm? Generally, we’ve concluded that we’re going to keep a copy of anything that walks out the door, because we provided representation, and we have an obligation to not only have that information for purposes of documenting our past representation, but any obligation we may have even though it’s a departing client.
KLINKER: But what about the Rolodex? In the day when
the Rolodex was little cards on my desk, that was kind of a different story. People toss that in their box and walk out. Now the Rolodex is electronic on the computer, and is not just mine on there, but yours and yours.
DIETRICH: Well, I think the departing lawyer has the right to take their piece of the electronic Rolodex that they’ve generated for contacts. Now, I suppose the question is, can you break that apart? Can you discern which names and addresses are generated by that attorney versus the whole database of the law firm?
I would not consider it appropriate to walk away with the client list of the entire law firm. I think there’s a real question about to what degree you can even be sharing that as you’re negotiating an employment agreement.
Mark F. Vetter
Mark F. Vetter is the president of Davis & Kuelthau sc where he is responsible for implementing the firm’s strategic plan and managing the operations of the firm’s main office and five branch offices. He focuses his practice in the areas of private and public sector labor and employment law and school law.
WLJ: How does the scenario change when it’s a shareholder or a named partner.
VETTER: If it’s a shareholder who’s leaving, and that person is talking to other shareholders, associates, or staff that he or she wants to take along, that is a major breach of their obligation to the firm. We’ve had that in the past where somebody has talked to associates and said, "I’m going to start my own firm," or "I’m going here, would you like to come with me?"
We have not so subtly reminded them that they are still shareholders of the firm. They have an obligation to the firm. Technically, if there’s any damage caused to the firm by that departure, they are exposed. There are people that don’t understand that principle.
CADE: Certainly, if it’s the partner leaving to start their own firm, turning around before you even left saying, "Hey, come join me," that could be a problem. But if the named partner leaves to go to another firm, and then that other firm calls up the associate, or another partner saying, "So and so is joining us, do you want to come?" that’s different. Then, it’s not the departing lawyer who’s causing that ripple effect. So there are ways to do it. Above all else, it needs to be above board.
VETTER: Even though you might allow the departure, you don’t want somebody who’s a shareholder or partner in your firm talking to three or four other people and saying, "Come on, we’re going to be leaving the end of the month." If they leave, and then communicate, there isn’t anything we can do about that. But the fact that it creates a cancer within your firm, it’s something that’s totally inappropriate, and really can’t be tolerated. They have to be advised of the fact that it is a breach of their fiduciary obligation as a shareholder of the firm.
WLJ: A case out of California, Reeves v. Hanlon, came down recently where there was an issue of luring coworkers away. The California Supreme Court came down on them and said, "No, you can’t be doing that." Have we seen our court doing anything similar?
DIETRICH: I don’t think our court has addressed the issue at all. The practicality of it is neither the departing lawyer, nor the law firm want to have their employment matters and their client matters played out in a lawsuit. So there’s a great deal of reluctance. I think it’s handled, Mark, as you suggested, although in reality that may be a little bit of an idle threat based upon the fact that it’s going to be a case of last resort that you’re going to take your internal governance issues to circuit court. I’m not so sure many people pursue it.
CADE: You also don’t know where the courts are going to end up. Because there’s so little case law, it could go either way. The court can come down on using the rules of professional responsibility, or they can come down following the rules that have been generated out of Chapter 180 dealing with, essentially, corporate law.
Don’t forget, lawyers as a whole are not bound by any type of covenant not to compete. There is case law that says you cannot make a lawyer sign a covenant and limit the lawyer’s ability to practice, in turn limiting the lawyer’s client’s ability to have that lawyer do the work.
KLINKER: You may have a perfect law school exam question that establishes all the elements of a cause of action for some kind of wrongful interference with a relationship. But, ultimately, someone will sit back and look at that, and as Nate said, ask what’s the damage? The guy went the direct route, and he solicited a bunch of people to come with him. Had he taken a less direct route, gotten over to his new firm, and then a contact was made, those people would still make a choice and move if they wanted to move. You’d be in the pretty much exact same position. So, ultimately, what was the damage?
Michael J. Klinker
Michael J. Klinker is Vice President of Whyte Hirschboeck Dudek SC, and is in charge of the Business and Planning practice areas. In that capacity, he oversees about 50 attorneys and is responsible for professional recruitment in those areas. His practice areas include charitable/nonprofit organizations, China practice, corporate transactions and business law, health care law, private equity and securities.
WLJ: When a firm is talking to a lawyer about coming, how do you make sure that it’s going to be a good fit and that it’s going to be a smooth transition?
E. MICHAEL MCCANN: We have hired people from the Public Defender’s office. We haven’t really struggled because so much of our wo
rk is trial work, so we have a splendid opportunity to watch that person in action. For the applicant who has not been in court, you ask what they’ve been doing. You discuss what they’ve done, their various accomplishments.
About half of our hirings are out of law school and that’s a tough one, because you’re trying to anticipate skills that the person will not have much of an opportunity to demonstrate. How will that person perform in court? We are very careful about whether there has been any criminal background. We run criminal checks. I’m not sure that many of the other law firms do that. We don’t want to be embarrassed and find out someone we’ve hired was convicted of a misdemeanor. Something that won’t stop you at the bar. You can still get through the bar and still have a criminal record. Not a serious one. So we do run a criminal record check.
I can recall we hired an attorney who had been doing appellate work, but was very keenly desirous of trying cases. He worked with us about a year. He was doing good work. But he came to me and said that he could not sleep at all when his trial approached. He simply could not sleep. It was affecting his health. That’s not atypical at all. But he found that there’s a great deal of stress in jury trial work. He just couldn’t do it.
We take a three-year written commitment from anyone who joins our office. Because in my experience earlier as district attorney, I found many persons coming in desirous of accumulating trial experience. The last time I noticed, we tried in our office over half the jury trials conducted. We are about 120 lawyers. So if you want trial experience, ours is an office that you would want. But I felt we were running a graduate trial course. Lawyers would be with us a year, year and a half, and depart. I felt that did not adequately protect the public’s interest. So we take a three year written commitment. It’s almost always been observed.
DIETRICH: It’s a real talent to be good at hiring. You base it on a lot of guessing. And I suppose perception and feel.
VERHOFF: A lot of times it’s your gut.
CADE: We’ve had lawyers we’ve brought in, but they haven’t worked out. Having conversations with the people who made the ultimate hiring decision, my response was "Why didn’t you come to me, or come to someone else?" All the young lawyers in Milwaukee pretty much know each other. We’re active in MYLA (Milwaukee Young Lawyers Associa-tion), or active in some other organizations. I can tell you a lot about some people, or at least get information on them. More information than you can find just in an interview.
They might come across in an interview great, but the lawyers in your firm who dealt with him will say that person is an absolute jerk; is horrible on cases; doesn’t extend professional courtesy. Ask people in your office, or if there are people outside of your office that you trust. We can pick character better than you can in a 30-minute interview.
KLINKER: It sounds cliche maybe to say it’s about cultural fit, but it is really true. If you just ask somebody "Do you have a license?" and "How much business do you have?" they can come over and be a real problem. Then you’ve got a big investment in them, directly and indirectly, so you do need that to work out.
Nathaniel Cade Jr.
Nathaniel Cade Jr. is a partner practicing in litigation at Michael Best & Friedrich LLP in Milwaukee. He is a member of the firm’s Tort Liability Focus Group and has experience in products and premises liability, tort law, personal injury defense, construction law, insurance defense and commercial litigation. He chairs the State Bar’s Committee on Professional Ethics and served on the Ethics 2000 Commission.
We’re not all that scientific, but we do have some common questions that we try to make sure are asked by someone during that process; they’re questions designed to pull out some of these other attributes that we think are important about a person’s professionalism, integrity, or whatever. When the group that’s interviewing the candidate gets back together, we try to make sure someone covered this question, and someone covered that one to begin methodically addressing some of those cultural fit issues.
MCCANN: I want to touch on a statute which is important in terms of conflict of interest, and that’s Section 978.06(4). It’s a statute which I think is an old statute, was for a different time. It provided that anybody in the District Attorney’s office when a case is issued, a charge is issued, or indictment handed down, cannot thereafter represent that person.
Now we’re an office of 120 lawyers. So that if one lawyer, say on June 1 issued a charge against John Smith, and another lawyer who is a totally different, never had any contact with that case at all, left the office a month later, they could not represent that person. It’s a flat statute. It does not provide for any waiver. I have interpreted that it comes out of a different era. It doesn’t anticipate the size of the office. And I have signed expressed waiver letters, saying an assistant who was in Children’s Court, had nothing to do with downtown prosecution at all; was out there for years; left; then joined a firm where they’re working on some adult cases I have given those assistants a waiver providing that they never discussed the case with anyone else, had nothing to do with the case. I waived any objection and waived the breach of the statute. Although the statute is flat, I think it’s because they represent the state’s interest that I can do that.
[The statute] would cut off someone transferring. It would really cut them off because they’re joining a firm that does criminal defense work. They have to wait for new clients. That would just be too broad. I don’t think that’s really the meaning of the statute.
DIETRICH: Tony, let me take your question just a little differently. I would guess for the Milwaukee lawyers that this may not be an issue, so I’ll ask Laura first. If law firm A in Madison steals an associate from law firm B, does that create problems within the practice?
VERHOFF: I would say it depends how the stealing came about. Now, it’s a small enough bar that I think everybody has an interest in having good relations with one another because we
see each other over and over and over again. And associates move from place to place with relative frequency. I haven’t had any experience with a lot of heavy solicitation on behalf of one firm trying to take away a particular associate. My experience has always been that associates, for one reason or another, decide to leave and then go. But I would think that even if someone were trying to solicit someone away, it would depend on how they did it.
KLINKER: I think we’re resigned to the fact that people move for whatever reasons. And we want everybody to be happy.
VETTER: I think we probably see more headhunter contacts in the Milwaukee area, maybe Madison as well. But that’s something that has changed over the last 10, 15 years. You see the ads, and the next thing you know, you’ve got the headhunter following up on that. That’s obviously active solicitation trying to get somebody, but that’s the real world.
E. Michael McCann
E. Michael McCann has run the Milwaukee County District Attorney’s office continuously since his first election in 1968. He oversees an agency with five deputy district attorneys and a legal staff composed of approximately 125 assistant district attorneys.
It may have been a couple years ago when I read an article that said that the average attorney now is in 3.5 different positions in their career. I don’t know if any of you’ve seen anything different. But I thought it was somewhere in that area. That’s 180 degrees different than where we were maybe 15, 20 years ago. At least in Wisconsin or the Milwaukee area, you started with a firm and if you made one move, it was really dramatic. Now, it’s just a much more mobile situation.
KLINKER: I don’t see firms poaching actively, but resumes go back and forth certainly, and there’s not much we’re going to do about that.
DIETRICH: Some of my IT friends tell me about the programs they have that can catch when an employee is sending a resume from their computer to another employer.
VETTER: Big brother in Wausau?
VETTER: Stay away from Wausau.
DIETRICH: I wouldn’t be surprised some day that we start doing more of that type of big brother stuff.
WLJ: Before we conclude this discussion, I do want to go around the table to see if you’ve got any final thoughts.
KLINKER: It occurs to me as I read these cases from other jurisdictions, that people here in the Midwest are kinder and gentler, perhaps. And some of the sharp practices that you read about, at least so far, haven’t made their way into our community. I speak of "community" as a statewide community. People generally try to be fair with each other; that’s my experience.
MCCANN: Mine too. We simply have not had the conflict problems that you might think. I think that reflects on the general integrity of the bar. There are exceptions, of course. It would be foolish to suggest otherwise.
We see in some jurisdictions there is a keen antipathy between the prosecutor and the public defender’s office. I believe that that results in injustice to defendants. If you’re committed to justice, you can’t have that antipathetic relationship. I think it’s important that there be a talking civil relationship between the defense bar and prosecution bar.
VERHOFF: I would say my experience has been, for the most part, that everybody wants to make the transition as smooth as possible. Whether they are going from private to private, or from private to public, or coming from public to private, it all seems to go pretty smoothly, because everyone really wants to make it work.
CADE: If I have a comment, it’s be above board. Your reputation is everything. It’s long earned, quickly burned. So do what you can to protect your reputation. If you do that, everything else will go smoothly.
VETTER: Keep in mind that the client is paramount. Work off that premise. Then the next step is don’t take it personally. Recognize it’s a business situation, a business relationship. The departure is going to occur. Treat it as a business arrangement. Try to keep the emotions out of it. Practically, it works out, the client is served, and everyone can go their separate ways.
DIETRICH: I’ll put in a plug for the State Bar of Wisconsin, that has a program that helps lawyers keep it at a professional level by setting up a service where somebody will come in and mediate between different lawyers departing a firm, or the firm. It will even arbitrate cases. That’s a service that we try to provide to help keep the client paramount. Which is the best rule you can follow.